The Essence of Authorship 3

Introduction 3

Purpose of Copyright 3

The Requirement of Originality 3

Fixation Requirement 4

The Distinction Between Idea and Expression 4

Discoveries 4

Literary Works 5

Musical Works 5

Pictorial, Graphic, and Sculptural Works 5

Works of Applied Art 5

separatability 6

Blank Forms and Other Works for Recording Information 6

Architectural Plans and Structures 7

Photographs 7

Absence of Originality 7

Sound Recordings 8

The Nature of a Derivative Work 8

The Nature of a Collective Work 8

Initial Ownership of Copyright 9

Collective Works 9

Works Made for Hire 9

Works Prepared by an Employee within the Scope of Employment 9

Works Prepared on Special Order or Commission 10

The Creation of a Joint Work 10

The Elements of Joint Authorship 11

Statutory Formalities 11

The Consequences of the Omission of a Proper Copyright Notice 11

Innocent Infringement 12

The Significance of Registration 12

Suit Prior to Issuance of Registration Certificate 12

The Nature of the Rights Protected by Copyright 12

Indirect Copying 13

The Reproduction Right 13

Limitations on the Reproduction Right: The Mechanical Compulsory License of Nondramatic Musical Works 13

Importation 14

License Versus Sale 15

Infringement Actions: Procedural Aspects 15

Standing 15

The Statute of Limitations 15

Infringement Actions: Substantive Aspects 16

Ownership 16

Copying 16

Access 16

Substantial Similarity 16

Abstractions Test 16

Total Concept and Feel 17

Abstraction Filtration Test 17

Striking Similarity 17

Limiting Principles: Merger 17

Limiting Principles: Scenes a Faire 17

Defenses 17

The Purpose and Character of the Use 18

The Nature of the Copyrighted Work 18

The Amount and Substantiality of the Portion Used 18

The Effect upon the Plaintiff's Potential Market 18

Copyright

Introduction

In enumerating the powers vested in the federal government, the Constitution (art. I, §8 cl.8) provides that the Congress shall have power

To promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries.

Purpose of Copyright

The primary purpose of copyright is not to reward the author, but is rather to secure the general benefits derived by the public from the labors of authors. The authorization to grant to individual authors the limited monopoly of copyright is predicated upon the dual premises that the public benefits from the creative activities of authors, and that the copyright monopoly is a necessary condition to the full realization of such creative activities.

The Essence of Authorship

Because, under the Constitution, only an ”author” is entitled to copyright protection, the meaning of that term obviously bears major importance. In Burrow-Giles Lithographic Co. v. Sarony, the Supreme Court defined “author” in the constitutional sense to be “He to whom anything owes its origin; originator; maker.” Thus, the one indispensable element of authorship is originality. One who has slavishly or mechanically copied a work from others may not claim to be an author of that work.

The Requirement of Originality

A work's originality itself must exhibit a modicum of intellectual labor in order for the work to constitute the product of an author. Still, such intellectual labor may be sufficient to establish authorship even if only slightly greater than de minimis.

Any “distinguishable variation” of a prior work will constitute sufficient originality to support a copyright if such variation is the product of the author's independent efforts, and is more than merely trivial. This doctrine owes its origin in large part to the words of Justice Holmes in Bleistein v. Donaldson Lithographing Co.

It would be a dangerous undertaking for persons trained only to the law to constitute themselves judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.

The smaller the effort (e.g., two words) the greater must be the degree of creativity in order to claim copyright protection.

Copyright Office Regulations

Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents.

Fixation Requirement

In order for ''works of authorship'' to be eligible for statutory copyright, they must be ''fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.''

The fixation requirement will be satisfied if the work as fixed can be perceived ''either directly or with the aid of a machine or other device.'' This is intended as a legislative overruling of the doctrine of White-Smith Publishing Co. v. Apollo Co. That case held that a piano roll was not a ''copy'' of the musical composition recorded thereon, and that therefore, the defendant, in making an unauthorized piano roll of plaintiff's musical composition, had not infringed plaintiff's ''right to copy.''

A work is not ''fixed'' under the Copyright Act unless its embodiment in tangible form is ''sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.'' Thus, live radio and television broadcasts are embodied in a ''medium of expression…from which they can be perceived, reproduced, or otherwise communicated,'' but the projected sounds and images are ephemeral, and hence not ''fixed.''

The Distinction Between Idea and Expression

Copyright may be claimed only in the ''expression'' of a work of authorship, and not in its ''idea.” This fundamental distinction, arguably required by the freedom of speech guarantee of the First Amendment, constitutes not so much a limitation on the copyrightability of works, as it is a measure of the degree of similarity that must exist between a copyrightable work and an unauthorized copy, in order to constitute the latter an infringement. It is, therefore, dealing with the requirement of substantial similarity. Although long recognized by the courts, the idea-expression dichotomy was for the first time accorded express statutory recognition in the present Copyright Act. Section 102(b) provides:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such a work.

Discoveries

One of the items enumerated in Section 102(b) may be denied copyright protection not simply because it is an unprotectable ''idea,'' but also for a related but distinguishable reason. A ''discovery,'' even if it were not merely an ''idea'' would be denied protection on the ground that it is not an ''original'' work. The ''discoverer'' of a scientific fact as to the nature of the physical world, an historical fact, a contemporary news event, or any other ''fact,'' may not claim to be the ''author'' of that fact. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 347 (1991).

Literary Works

Section 102(a)(1) of the Copyright Act provides that ''literary works'' constitute protectible works of authorship. ''Literary works'' are defined as ''works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, tapes, film, discs, or cards, in which they are embodied.''

Computer Data Bases and Programs

The statutory definition of ''literary works'' is broad enough to include computer databases and programs in that it includes all ''verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as ... tapes, discs, or cards, in which they are embodied.'' The House Committee Report expressly stated that this definition of ''literary works ... includes computer data bases, and computer programs to the extent that they incorporate authorship in the programmer's expression of original ideas, as distinguished from the ideas themselves.

Musical Works

Section 102(a)(2) of the Copyright Act specifies ''musical works, including any accompanying words'' as among the words of authorship protected under the Act.

Protection for Lyrics

Section 102(a)(2) of the Copyright Act expressly provides for the protection of ''musical works, including any accompanying words.'' Suppose the plaintiff's work includes both music and ''accompanying'' words, but the defendant copies only the plaintiff's words, unaccompanied by his music, or only his music, unaccompanied by the words.

Pictorial, Graphic, and Sculptural Works

Section 102(a)(5) of the Copyright Act specifies as copyrightable works of authorship ''pictorial, graphic and sculptural works.'' These are defined1 to ''include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, and models.''

Works of Applied Art

Works of applied art are said to ''encompass all original pictorial, graphic, and sculptural works that are intended to be or have been embodied in useful articles, regardless of factors such as mass production, commercial exploitation, and the potential availability of design patent protection.'' The present Copyright Act expressly adopts the holding in Mazer v. Stein, wherein the Supreme Court upheld the copyright in a statuette used as a lamp base, and ratified the then extant Copyright Office Regulation providing for protection of ''works of artistic craftsmanship, insofar as their form but not their mechanical or utilitarian aspects are concerned, such as artistic jewelry, enamels, glassware and tapestries.”

Unhappy with the open-ended extension of copyright protection to all manner of useful articles suggested by Mazer, the Copyright Office, in the mid-1950's, in an effort to ''implement'' the Mazer decision, adopted the following Regulation:

Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.

separatability

In Kieselstein-Cord v. Accessories by Pearl, Inc., the issue presented was the copyrightability of two belt buckles, which the court described as ''sculptured designs cast in precious metals--decorative in nature and used as jewelry.'' Judge Oakes, writing for the court, characterized the issue as ''on a razor's edge of copyright law,'' but concluded that under both the 1909 Act and the 1976 Act, the buckles were copyrightable. The court of appeals in Kieselstein-Cord reversed the district court, which had held that the buckles were not copyrightable because they ''failed to satisfy the test of separability and independent existence of the artistic features, which is required under both [the 1909 and 1976] statutes.'' The court of appeals found that the artistic features of the buckles were ''conceptually,'' even if not ''physically,'' separable from the utilitarian features, and that this was sufficient to accord copyright status.

In a subsequent case, Carol Barnhart Inc. v. Economy Cover Corp., the Second Circuit denied copyright protection to mannequins of the human torso with hollowed backs. In contrast to the belt buckles in Kieselstein-Cord, the court believed the design of the mannequins to be wholly dictated by their utilitarian function, and hence lacking in conceptual separateness.

In Brandir International, Inc. v. Cascade Pacific Lumber Co., Judge Oakes , writing for the majority of a divided Second Circuit panel, adopted the standard that ''if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements. Conversely, where design elements can be identified as reflecting the designer's artistic judgment exercised independently of functional influences, conceptual separability exists.'' Based on that standard, the court rejected copyright protection for a bicycle rack made out of bent tubing, which originated from a wire sculpture of almost the same design. Although conceding that the artist's original wire sculpture, even if put to the utilitarian end of supporting bicycles, might have qualified for copyright protection, the majority held that adaptations of the aesthetic elements for the sake of industrial design, under the standard quoted above, forfeited that protection.

Blank Forms and Other Works for Recording Information

In Baker v. Selden, the Supreme Court established limitations applicable to works of utility. Courts applying the 1909 Act have held works copyrighted as ''drawings or plastic works of a scientific or technical character'' under it to be subject to the doctrine of that case. Although the Supreme Court formulated the doctrine of Baker v. Selden to relate only to the rights available to a copyright owner of a work, and not to the copyrightability of the work per se, courts nonetheless invoked the doctrine under the 1909 Act to deny copyright to works claiming under this classification to the extent that those works have been found to be solely objects of use rather than explanation.

Copyright Office Regulation

By regulation adopted during the pendency of the 1909 Act, the Copyright Office adopted this rule by including among material not subject to copyright:

Works designed for recording information which do not in themselves convey information, such as time cards, graph paper, account books, diaries, bank checks, score cards, address books, report forms, order forms and the like.

Architectural Plans and Structures

Although statutory copyright in plans clearly protects against unauthorized plans copied therefrom, a more difficult question is whether copyrighted plans protect against the unauthorized construction of a structure based upon copyrighted plans.

Photographs

In the leading case of Burrow-Giles Lithographic Co. v. Sarony , the Supreme Court held photographs to constitute ''writings'' within the meaning of the Copyright Clause of the Constitution. The Court further held that the particular photograph in issue in that case (a portrait of Oscar Wilde) exhibited sufficient originality to be entitled to copyright, ''by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression.'' However, the Court expressly declined to rule on the question whether ''the ordinary production of a photograph'' necessarily exhibits sufficient originality to claim copyright.